Kearney v Amirbeaggi - [2022] NSWSC 805

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2022] NSWSC 805
Hearing dates: 10 June 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1)   The plaintiff’s lay and expert evidence in reply is to be filed and served by 8 July 2022.
(2)   The defendants are to serve a court book consisting of all pleadings and evidence, the exhibits to all affidavits to be dismembered and placed in chronological sequence by 15 July 2022.
(3)   The parties to file and serve any further documentary material to be relied upon at the trial by way of supplementary tender bundle by 25 July 2022.
(4)   The parties to exchange submissions not exceeding 15 pages, chronologies and objections to evidence by 28 July 2022.
(5)   The defendants deliver the court book and supplementary tender bundles to my associate by 29 July 2022.
(6)   Costs of today are reserved.

Catchwords:
PROCEDURE – application to vacate hearing date – no question of principle

Cases Cited:
Kearney v Amirbeaggi [2022] NSWSC 130

Category: Procedural rulings
Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)
Representation:
Counsel:
Mr B Kearney, in person (Plaintiff)
Ms FT Roughley (Defendants)
Solicitors:
Mr B Kearney, in person (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s): 2019/96321

EX TEMPORE Judgment

(Revised from transcript)

This is an application to vacate a hearing date of a matter that has an estimate of seven days hearing time and is fixed to commence on 1 August 2022. The plaintiff, Brian Kearney, commenced the proceedings in 2019 and seeks damages against his former solicitor, alleging that they were negligent. To address the application which is brought by Mr Kearney, it is necessary to outline at least some of the recent history of the matter.

Background

During 2021, the proceedings were given a hearing date in September 2022 based on a longer estimate. Mr Kearney, who at all relevant times has represented himself, filed a motion that sought “expedition” but in effect, sought that the matter be given an earlier hearing date. One of the matters that Mr Kearney relied on was a contention that his mental health was affected by ongoing delay in the litigation. One difficulty with the state of the proceedings, at least in 2021, was that the defendants were in breach of an order requiring the provision of his evidence.
Ultimately, Mr Kearney’s motion was referred to me. I heard it on 15 February and made orders on 17 February 2022 (see Kearney v Amirbeaggi [2022] NSWSC 130; “Kearney (No 1)”). In light of a revision of the estimate of the hearing date, I was able to fix the matter for hearing on 1 August 2022. Further, I indicated that in light of Mr Kearney’s assertions about his mental state, I would be amenable to seeking to minimise his appearances by allowing such matters as could be sorted out by correspondence between the parties and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kearney v Amirbeaggi

Details

AGLC: Kearney v Amirbeaggi [2022] NSWSC 805
Case: [2022] NSWSC 805
Decision Date: 10 June 2022

CaseChat Overview and Summary

Kearney and Amirbeaggi's legal dispute was heard in the Federal Circuit Court of Australia. The case involved a request by the respondent, Amirbeaggi, to vacate a hearing date that had already been set. The matter was brought before the court for consideration under the relevant procedural rules governing the scheduling of hearings and the ability to reschedule them.

The court had to decide whether there was a valid reason for the respondent to vacate the hearing date that had been set. The respondent argued that there was an exceptional circumstance warranting the vacating of the hearing date. The court needed to assess whether the respondent's reasons were indeed exceptional and whether they met the threshold for allowing a hearing date to be vacated.

In its reasoning, the court found that the respondent had not demonstrated any exceptional circumstances that would justify vacating the hearing date. The court held that there was no question of principle involved in the application, and the respondent's reasons did not meet the necessary threshold. The court concluded that the application to vacate the hearing date should be dismissed. The court's decision was based on the lack of exceptional circumstances presented by the respondent, and the court's finding that no question of principle was involved. The final orders of the court were that the application to vacate the hearing date was dismissed.

Orders